Pennsylvania physicians' efforts on liability reform hit a roadblock

Pennsylvania doctors are back to square one in their quest for a cap on noneconomic damages awarded in medical malpractice lawsuits.

Physicians thought they were on their way to asking voters to change the state's constitution to allow a cap, but judiciary committees in the Pennsylvania House and Senate in July failed to pass a bill that was a key step in putting a referendum on the ballot.

"This was a real blow," said Nicholas DiNubile, MD, a Delaware County, Pa., orthopedist who has watched peers leave Pennsylvania. "Just when you think you have momentum, a few powerful people can stop it."

Spring 2007 is now the earliest that the state's residents would be able to vote on a ballot measure that would pave the way for jury award limits. For a referendum to be held, the House and Senate must pass a bill authorizing it in two consecutive legislative sessions. Even if the question were to make it to the ballot and then pass, caps wouldn't take effect right away. The Legislature would first have to pass a bill setting a dollar limit on the pain and suffering awards in medical malpractice trials.

Despite the latest setback, physicians are holding out hope.

"We seem to be getting closer," said Ronald Martin, MD, a rural general practice physician in Cambridge Springs. "It will eventually happen."

Physicians and insurers contend that caps on noneconomic damage awards will help stabilize the medical liability climate in Pennsylvania. Trial lawyers acknowledge that rising liability insurance costs have created problems for some physicians. But they say they don't believe that caps are the answer. Instead, they contend, patient safety measures and insurance industry reforms would rein in medical liability insurance premiums.

Pennsylvania is one of 20 states the AMA says is experiencing a medical liability insurance crisis because physicians are leaving the state, retiring early or giving up high-risk procedures in an attempt to reduce premiums. Pennsylvania was one of the first states to experience problems, and despite some reforms, the situation does not appear to be improving.

In 2003, only 17% of residents who trained in Pennsylvania stayed there, according to the Pennsylvania Medical Society. The state had a net loss of 507 physicians from 2002 to 2003, and it dropped into the bottom 10 states for the number of young physicians in the state, PMS data show.

"I don't think it's getting better," said PMS spokesman Chuck Moran.

Looking ahead

The PMS will renew its push for the constitutional change during the next session, which starts in January.

Meanwhile, the medical society continues to advocate for other reforms aimed at helping physicians pay their premiums while still being able to keep their practices financially afloat. The PMS is considering the idea of arbitration and a no-fault system as alternatives to lawsuits. It is also looking at patient safety issues and limits on attorney fees.

But continuing the MCARE abatement is perhaps the biggest way to help physicians in the immediate future, PMS officials and doctors say.

Physicians in Pennsylvania must pay into a state catastrophic fund known as the MCARE. The money is used to help pay high jury awards. The fee is on top of what doctors pay for their medical liability insurance. For some physicians, the charge can be as high as $35,000 annually.

Physicians received full or partial abatements from the fee in the past few years, and money for another abatement was part of the budget passed by the Legislature in early July and signed by the governor. That change applies to bills that would be due in December.

"The abatement program seemed to hold off people from leaving," the PMS' Moran said.

But Dr. Martin would like to see the state do away with MCARE. "It's going to bankrupt us if we don't get that resolved," he said. "Legislators just don't get that our practices are limited in the income they can bring in."

Dr. DiNubile said that even though some lawmakers are fighting hard for tort reforms, the public and doctors need to express outrage at the liability problem. "There's clearly not going to be a legislative solution," he said. "We better start getting creative and get more doctors motivated to improve the situation."

Wyoming in special session

Meanwhile, at press time, Wyoming lawmakers were meeting in a special session to consider several bills that some believe would help alleviate the problems Wyoming physicians have faced as their medical liability insurance bills have risen.

The six-day session began July 12. Legislators were considering bills supported by the Wyoming Medical Society, including a measure that would amend the constitution so that caps on noneconomic damages could be considered for health care professionals. Voters also would have to approve a constitutional amendment.

The WMS was opposing a bill that would establish a $1 million cap on noneconomic damages because the legislation contains an exception for "gross negligence." Physicians also believe that the cap is too high to offer relief from skyrocketing medical liability insurance premiums.

Among the reforms being considered that the WMS supports:

• An "I'm sorry" clause that would allow physicians and other health professionals to express sympathy without their statements being used against them in court.
• A structured payment system that would allow physicians to pay for damages exceeding $200,000 over a period of time, instead of in one lump sum.
• Studies on topics related to liability insurance and reforms. The bill proposes looking at medical errors, as well as studying the feasibility of risk-retention groups in which physicians join together to form their own insurance companies. Doctors would be the company owners and would bear the insurance risk.
• A medical malpractice insurance assistance account through which physicians could apply for loans to help pay for insurance premiums for prior acts or tail coverage.